With regard to upholding the rule of law and protecting people's rights, the prosecution mechanism has certain primary responsibilities: investigating crimes and complaints to see whether the law has been broken and by whom, prosecuting those responsible for committing crimes, and ensuring that justice is ultimately served by way of a fair trial and the punishment of the perpetrators according to law. However, for various reasons the prosecution mechanism in the majority of Asian countries is lacking in all these responsibilities, as indicated below.

A. Ineffectual prosecution

Investigation

The investigation of crimes and collecting of evidence is crucial to the prosecution of perpetrators, without which there can be no justice. While it is usually the police who are at crime scenes and do the initial investigations, the prosecution department must take some responsibility to ensure that investigations are being done adequately, if at all, and that they are given enough information to proceed with filing charges. The attorney general of Indonesia however, not only refuses to undertake its own investigations, but further disregards investigations conducted by other groups such as the National Human Rights Commission, regarding the 1998 May riots, Trisakti shootings and Samanggi killings, which took the lives of over 1000 people, with many others suffering injury and damage to their property and possessions. The victims of these abuses have been awaiting justice for seven years.

One of the reasons the attorney general refuses to act upon the Trisakti and Samanggi killings is that the Indonesian parliament concluded in 2000 that no violations of human rights had taken place. While this conclusion has been challenged and the parliament is set to reopen the investigation of these incidents, the attorney general's office cannot conclusively accept or infer to such political proceedings. Only judicial bodies have the authority to decide whether human rights violations have occurred or not, and it is the attorney general's responsibility to carry out investigations to this effect…

The indifference and lack of action by the attorney general of Indonesia--the department responsible for bringing criminals to justice--to prosecute the perpetrators of the May 1998 riots and subsequent abuses is a clear violation of domestic and international law, as well as a violation of the prosecution department's own mandate. One of the key roles of the prosecution and judicial institutions is to provide an effective remedy to victims whose rights have been violated. This is done through prosecuting the perpetrators and punishing them in accordance with international legal principles, as well as awarding suitable compensation to the victims. Not only do these actions serve to redress the wrong done to the victims, but in punishing the perpetrators, a clear message is sent to society that such abuses will not be tolerated. The attorney general of Indonesia however, seems to be sending the message that perpetrators of crimes can walk free, and thereby encouraging future violations [AHRC AS-73-2005, 29 June 2005].

This lack of investigation by the prosecution becomes a greater liability when the case is proceeded with in court, as occurred in the Bindunuwewa massacre case, Sri Lanka, where all the accused were eventually acquitted by the courts due to a lack of evidence. It is the responsibility of the prosecutor to ensure that persons are not implicated without cause and that cases do not proceed in court without sufficient merit.

On 25 October 2000, more than 25 young Tamils at a rehabilitation centre in Bindunuwewa were attacked and killed by a Sinhalese group. Forty-one persons were charged with participating in the massacre. However, the Sri Lankan courts gradually acquitted all of these persons due to a lack of evidence. The last of these occurred on 27 May 2005 when the Supreme Court acquitted the remaining accused on the basis that the evidence against them lacked merit.

That the massacre took place killing 27 detainees and injuring 14 others is not in doubt. That the modes of killing were ugly and cruel is also not in doubt. That the Sri Lankan government was responsible for the protection of these detainees is also well established. However, just who the actual perpetrators of this heinous crime were, the Sri Lankan justice system has been unable to resolve.  

The primary responsibility for this failure lies with the Sri Lankan police, who had the legal responsibility to investigate and provide the necessary evidence to secure a successful conviction. Obviously the investigators failed in their task. There is clearly also a failure on the part of the prosecutors in Sri Lanka; a failure that lies with the attorney general’s department itself. The department should not have filed indictments against persons if they did not have sufficient evidence to prove a case successfully before a court. To the accused, it is a great injustice to bring them before a court without sufficient evidence. To the survivors of the massacre and the relatives of the dead, such prosecutions amount to deception.

Successful prosecutions are not possible without a functioning criminal investigation system that is able to conduct professional and thorough inquiries before proceeding to court. Additionally, there must be a prosecuting system that thoroughly measures the evidence before prosecutions are filed [See further: AHRC AS-57-2005, 30 May 2005].

The absolute separation that exists between the criminal investigation and prosecution systems in Sri Lanka is thus highly detrimental. The criminal investigation is solely in the hands of the police, with the prosecution usually having no power to conduct criminal investigations, and being dependent on the information given to them by the police. They are dependent to the extent that only when the police inform them of a given crime or complaint, can they take any further action in the case. This situation in fact exists in many Asian countries. Given the situation of the policing systems in the region, this does not bode well for the protection of human rights (for more detail, see HRCS Lesson Series 41). Not only is this problematic when dealing with crimes committed by ordinary people, but it becomes worse when the crimes are committed by law enforcement officials.

In Thailand for instance, the control of the police over the investigation and filing of charges has led to numerous instances of police abuse remaining unaddressed in accordance with either domestic or international legal provisions. These include recent incidents of police shootings as well as the 25 October 2004 killings.

Under section 148 of Thailand's Criminal Procedure Code, a death in custody must be followed by a post mortem autopsy and investigation into the cause of death. Under section 150, three agencies must be involved: the forensic doctor, investigating officer, and public prosecutor. After the autopsy has been completed and report submitted, it is the job of the public prosecutor to approach the court for an inquest, with a view to entering into criminal proceedings if necessary. This process should not be delayed under any circumstances, such as a politically appointed inquiry also being under way. It is the role of the public prosecutor to investigate and prosecute all crimes, including those committed by government officers, without regard to other factors.

The mass killing that occurred on 25 October 2004 in Narathiwat province due to the brutality of police and military officers however, was not so investigated.

After October 25, what has happened? Four doctors from the Forensic Science Institute conducted partial examinations of the 78 victims removed from army trucks, and took samples for further testing. They played a critical part in exposing the scale of the tragedy at a time that the military might have preferred to conceal it. However, full autopsies were not conducted, nor were officials from the police or public prosecutor reported to be present. Questions may then arise as to the consequences of their investigation, and its significance for the role of the public prosecutor.

A commonly held excuse by public prosecutors in many countries in Asia is that where autopsies are botched or police investigations inadequate, they are unable to proceed with the case due to procedural failings or lack of evidence, thereby permitting the perpetrator to escape criminal liability. But this is no excuse. It is the constitutional requirement of a public prosecutor to pursue investigations, obtain the compliance of other necessary agencies, and take the matter into the courts. Failure to do this amounts to failure to do the job altogether. There is no substitute for this role, and under no circumstances should the public prosecutor be obstructed from performing this duty.

So what is the public prosecutor doing in this case? Has an investigation been opened? Have the reports been sought from the forensic doctors? If there is confusion about the procedure relating to the autopsies, have steps been taken to deal with this as quickly and expediently as possible? If there are other agencies opposed to the public prosecutor investigating the case in accordance with the law, how can they be overcome? In short, are the necessary questions being asked to bring criminal proceedings against those persons responsible for the deaths in custody of October 25? It is the job of the public prosecutor to address these questions and to take a leading role in the business of obtaining answers without further delay, and all other government agencies are obliged to admit to that role…

Deaths in custody and extrajudicial killings of any kind are grievous violations of human rights. They go to the heart of the responsibility of the state and its agents to its people. Deaths in custody of such a large number of people as occurred in Thailand this October 25 are not only morally outrageous, they also challenge the very institutions existing to protect and uphold the rights of all persons of the country under both local and international law. It is therefore the primary responsibility of the public prosecutor to ensure that all deaths in custody and extrajudicial killings are fully examined, the perpetrators identified, and held to account for their actions [AHRC AS-47-2004, 5 November 2004].

The stalled investigation into the recent death of Sunthorn Wongdao is another example of the control assumed by the Thai police, with little room for the prosecution to manoeuvre. Sunthorn was found dead in Bang Yai district, Nonthaburi province, on 21 May 2005. Sunthorn is said to have hidden in a house after being accused of shooting his wife and father-in-law in Bang Khunthien district, Bangkok. Police from that district claim that after they surrounded the house, Sunthorn committed suicide rather than surrender. But Sunthorn's brother believes that the police killed him. Investigators from the Central Institute of Forensic Science support this view; neither the condition of the victim's body nor the crime scene suggested a suicide. In fact, the victim had four bullets through a lung and one through his head. The gunshot wounds appeared to have been fired by another person at close range. Furthermore, the crime scene had allegedly been tampered with. The body of the victim seemed to have been turned over, and evidence organised to suggest a suicide. The police however, continue to insist that it was a suicide, thus stalling the investigation.

The decision as to whether the forensic pathologists--whose job it is to examine a case purely on the basis of scientific facts and give an opinion that can be backed by these--are right in concluding that the victim's wounds could not have been caused by a suicide must be left to the courts, not the police. It is ridiculous for the police to claim that they are in a position to accept or reject the views of independently operating forensic pathologists. To do so is an affront to criminal justice and to scientific investigation of crimes.

To get the matter before a judge however, it must go through the police. If the police prefer for a case not to arrive in court in a manner upon which it may be properly judged, they may take steps to obstruct it. This is a grave defect in how criminal investigations are conducted in Thailand. Particularly in relation to alleged extrajudicial killings such as this, the power enjoyed by the Thai police in pursuing or neglecting cases is an enormous barrier to the exercise of basic criminal justice. In fact, this power completely subverts the whole judicial process [See further: AHRC AS-64-2005, 16 June 2005].

Delays in prosecution

Another common defect of the prosecution system throughout Asia is the considerable delay in indictments and hearings taking place. For Sri Lankan rape victim Rita, not only has this delay meant that the perpetrators continue to enjoy their liberty, but also that she has had to prolong her suffering with the numerous hearings.

Rita was a grade ten student when she was brutally raped by two young men, Rameez and Piyal Nalaka on 12 August 2001. Rita was forcibly abducted by the two men as she was walking home after attending Sunday mass and confirmation classes at St. Patrick's Church in Talawakelle at about 2pm on August 12. She was raped by both men inside a vehicle and dropped off near the Hindu Kovil in Talawakelle at about 6pm that evening.

From a poor estate-worker's family, Rita does not speak Sinhalese. With great difficulty however, she managed to report the incident to the police and identify the perpetrators, who were then arrested. Rita was taken to the Kotagala Hospital and later to the Nuwara Eliya Hospital for a medical check-up and was discharged from the hospital on August 16. The suspects were held in police remand until August 28.

A public protest was held in the town of Hatton on August 26, demanding justice for Rita.

When the case was brought to court on August 28, although Rita’s lawyer objected to bail for the perpetrators, the police did not object, influenced by political pressure. The judge thus ordered bail for the accused after a heated argument between the two counsels.

Since then Rita's case was heard in the magistrate court of Nuwara-Eliya numerous times between August-November 2002 and was finally committed to the high court in November 2002. These numerous hearings--a means to delay the case and harass the complainant--caused repeated suffering to Rita. After all this, the case was never called at the high court. The attorney general's department was contacted on 26 July 2003 regarding the case, to which they responded on 19 January 2004, stating that they will take action. Needless to say, nothing has yet been done. It is the prosecution's duty to ensure that the right to fair trial--which includes speediness and effectiveness--is upheld.

Furthermore, in this case the Sri Lankan prosecution may also be guilty of working under influence, and thus not being independent and impartial. It is alleged that the perpetrators of the rape are affluent persons who are using their position and wealth to manipulate the delays; Rita's case (No 32151) was returned by the registrar of the Nuwara-Eliya Magistrate Court on the request of the attorney general's department on 22 October 2004 when it was being prepared to be sent to the Badulla High Court, while other cases from the same magistrate court have already been referred to the high court. There are also suspicions that someone is trying to misplace the file and cause additional delays [See further: AHRC UP-82-2004, 21 December 2004; UP-16-2004, 13 April 2004 and UA-33-2001, 6 September 2001].

In the Philippines as well, delays in cases are common and are a result of either direct or indirect actions by the prosecution. A recent case taken up by the Asian Human Rights Commission (AHRC) illustrates the problems clearly. Five young men, who were arrested, tortured and illegally detained in 2003, are still awaiting a verdict from the court, as their trial has been continuously postponed or cancelled over the last two years.

Tohamie Ulong (minor), Ting Idar (minor), Jimmy Balulao, To Akmad and Esmael Mamalangkas were arrested on 8 April 2003, in separate joint police and military operations in connection with the Davao International Airport (DIA) and Sasa Wharf bombings in Cotabato City.

Upon arrest, they were tortured into admitting involvement in the bombings. They were blindfolded, subjected to electric shocks, beaten, and experienced dry and wet methods of suffocation. They were then illegally detained at the headquarters of the Criminal Investigation and Detection Group (CIDG 12) in Davao City for several months before being turned over to the city jail.

Even then, no trial was conducted due to the slow progress in the conduct of reinvestigations and the prosecutor’s unclear declaration of probable cause. Under Philippine law, before a case can go on trial the prosecutor should establish 'probable cause'. It was only in the latter part of 2004 that the victims were arraigned. A pre-trial was set for 2 December 2004, but was postponed.

Since December 2004, the pre-trial has been postponed on several occasions. On 4 January 2005, it was postponed due to the existence of two sets of suspects in the same case. The judge had to order the City Prosecution Office (CPO) to decide who among them would be tried first. On 7 January 2005, the CPO decided that the five torture victims would undergo trial before the new suspects.

On 18 January 2005, the hearing was cancelled due to the absence of the prosecutor who was in hospital. Succeeding postponements occurred as the prosecutor had not yet established 'probable cause'. Finally, on March 31 Judge Paul T. Arcangel of the Regional Trial Court Branch 12, Davao City ruled that probable cause existed, and a trial should be proceeded with.

The next hearing, set for June, was also postponed, as the complainant represented by the CIDG 12 in Davao City and its witnesses failed to appear at the hearing because they did not receive notice or a subpoena from the court. The most recent hearing was scheduled for July 25, which was again postponed for the same reason: the prosecutor's failure to ensure the appearance of the complainants and witnesses at scheduled hearings.

All those accused of crimes have the right to a speedy and effective trial, and it is the prosecutor's duty to protect this right. Any obstacles in the protection of this right are in violation of the law. In addition, the prosecutor also has the duty to investigate all allegations of torture and initiate consequent proceedings [See further: AHRC UP-92-2005, 2 August 2005 and UA-69-2005, 26 April 2005].

Yet another reason for the delay in prosecution in many countries can be attributed to the lack of infrastructure and personnel. In its recent written statement to the 61st session of the UN Commission on Human Rights, the Asian Legal Resource Centre (ALRC) noted that in India,

5. …Often many courts do not have sufficient prosecutors to represent cases as and when they are taken up. In a local Magistrate Court in Wadakkanchery, Kerala State for instance, prosecutions were stalled for years due to the fact that the only prosecutor available was on deputation from another court. Only when this officer had enough spare time would he turn up at the Wadakkanchery court. By the end of one year the number of criminal cases pending disposal before the court was so large that it will take several years to clear off these cases, given the fact that every year the number accumulates to the existing backlog…

9. The lack of basic infrastructure within the entire justice system is another crucial issue that causes delays and inefficiency. When a prosecutor's office wants to communicate with a particular police station, there is no mechanism available other than the initiative of the prosecutor to spend from his own pocket or to make the interested party pay for this communication if the entire proceedings are not to be stalled. This lack of basic infrastructure not only results in the delay of proceedings but is also a root cause for corruption [ALRC, 'Delayed justice dispensation system destroying rule of law in India', E/CN.4/2005/NGO/107].   

Witness protection

Threats to witnesses in order to protect the accused are common in many Asian countries. Protection is more crucial when persons are witnesses and/or victims of crimes committed by law enforcement agencies. Unfortunately, few countries are able to provide effective protection to its citizens. While the Philippines law provides for witness protection, it is not being enforced.

In a May 31 letter to the Asian Human Rights Commission (AHRC) Police Director of the Directorate for Investigation and Detective Management at the national police headquarters Marcelo Ele Jr admits that the main obstacle to solving two recent killings in Camarines Norte, Luzon is the lack of witnesses. In the case of Ernesto Bang, an organiser in a peasant organisation who was shot dead at the door of his house on May 10, "Relatives of the victim… are no longer interested in filing the case due to the absence of a witness", Ele states. As for Joel Reyes, a political party organiser who was shot dead by a gunman posing as a passenger in his tricycle, "no witnesses had come out in the open for fear of reprisal".

In a May 30 letter, Paquito Nacino, regional director of the Commission on Human Rights in Tacloban City, Visayas, revealed that it had set aside its investigations into three murders there for the same reason. According to the Commission, a witness to the March 14 killing of human rights lawyer Felidito Dacut "is nowhere to be found". Meanwhile, the relatives of peasant movement leaders Fr. Edison Lapuz and Alfredo Malinao, who were killed in a May 12 shooting in Leyte have been "uncooperative and shown unwillingness to make any written statements". The wife of Fr. Lapuz, who witnessed his killing, "requested to give her more time to decide [about complaining] as the assailants are still unknown to [the family]".

A wife hesitates to complain about the killing of her husband in cold blood; a person runs for his life after the murder of his colleague and friend; a man is shot dead in a public street and no one can be found to identify the murderer. What is going on? Although provisions exist for witness protection in the Philippines, clearly they are not working. Republic Act 6981 guarantees that witnesses will be given the necessary protection, security and benefits. The Department of Justice is the agency responsible for arranging witness protection. So why isn't it doing its job? [AHRC AS-74-2005, 30 June 2005]

Sri Lanka however, does not have a witness protection programme and it has been stated that in 85 per cent of criminal cases, witnesses do not show up as they fear for their lives. This fear is founded on the recent killings of several witnesses and complainants against the police:

Gerald Perera was killed just a few days before he was to give evidence in a police torture case. The culprits have now been arrested--three police officers who are the accused in the torture case.

Another torture victim, Channa Prasanna, in whose case an inquiry was being conducted, was kidnapped and narrowly escaped a murder attempt. While two cases regarding these incidents were ongoing in the Magistrate Court of Negombo, a further attempt was made on his life at midnight as he was sleeping, but Channa awakened and was able to run away. Complaints have been made regarding this as well.

In the case of Lalith Rajapakse, there were numerous threats on his life and he is at present in hiding, while there is a police guard to protect his family and neighbor ULF Joseph, who was also threatened with death for helping the torture victim.

Amarasinghe Morris Elmo De Silva, who was allegedly tortured by some officers of the Ja Ella police station, had to flee the country due to threats to him and his wife because of a case filed against the perpetrators at the Negombo High Court.

Despite the numerous appeals and complaints in the above cases, government agencies have failed to provide adequate witness protection ensuring the security and well being of the victims. They have also failed to interdict the officers against whom inquiries are pending. The brutal and criminal behavior of such officers is thus allowed to take place with impunity, while the personal security of citizens is callously abandoned [AHRC AS-05-2005, 26 January 2005].

It is thus essential for there to be adequate witness and victim protection in order for prosecutions to be successful. Furthermore, it is the prosecutor's responsibility to ensure that if and when threats are made against those involved in legal proceedings, the perpetrators are punished.

B. Abuse of power

Prosecutors must be independent and impartial and must focus on achieving justice, particularly when dealing with crimes committed by law enforcement officials, which are graver in nature and consequence. When their work is based not on legal principles but on political or other influence, they are abusing their power; unfortunately, this is a common occurrence within the region, as indicated by the following case taken up by the Asian Human Rights Commission in 2004, from West Bengal, India.

Partha Majumdar disappeared on 5 September 1997 after witnessing the shooting of Mr Suresh Barui in Akrampur, West Bengal by police officers from the Habra police station. During the police firing, Partha was injured in his leg and was taken away by the police. In the days that followed, the victim's family made all efforts to locate him, to no avail; the police claimed that Partha had never been arrested by them.

In January 1998, the West Bengal High Court ordered the West Bengal Human Rights Commission (WBHRC) to undertake an investigation of the family's claims. The WBHRC recommended the West Bengal Government to instruct the Criminal Investigation Department (CID) to initiate a case against those responsible for Partha's disappearance. The CID began investigating this case, but it did not make any serious effort to arrest the accused. Instead, 11 accused police officers were granted anticipatory bail on 12 December 2000 without any objection from either the CID or the public prosecutor, even though their charges were non-bailable: they were charged with abduction in order to murder under Section 364/201/34 of the Indian Penal code. Since then, the main accused Mr Sunil Haldar is now the Additional Superintendent of Police, Malda, Murshidabad district. The other accused officers are working as outpost officers-in-charge in Jadavpur, Bali, Magrahat and Kaorapukur, West Bengal.

After several preliminary hearings, on 4 September 2004 the additional District and Sessions Judge, 1st Court at Barasat, North 24 Parganas finally decided that the 11 officers should be tried. Partha's family alleged that during those hearings the prosecutor deliberately made mistakes regarding the date of the incident and the names of the places in the legal documents, to create confusion and delay. Furthermore, the prosecutor did not object to the defense counsel appearing for the accused being state government empanelled advocates, even though under domestic law public prosecutors are prohibited to represent the police in a private capacity.

Partha's family also stated that in court on September 4, the prosecutor allegedly threatened the victim's mother and elder brother in court. In response, Partha's brother, Mr Dipankar Majumdar, submitted a complaint to the Calcutta High Court. Although the division bench of temporary Chief Justice Altamash Kabir and Justice Ashit Kumar Bishi ordered the removal of the public prosecutor and security for the complainants, nothing has been done [See further: AHRC UA-171-2004, 14 December 2004 and UP-35-2005, 31 March 2005].

Politicization

One of the main reasons that such abuse of power is so common within prosecution mechanisms throughout Asia is the high level of political and other influence exercised upon them. This is particularly noticeable in the appointment of senior prosecutors. The Prosecutor General in India for instance, is a political appointment, nominated by the ministry of justice. While the ruling party is in power, its members are thus assured of having their interests represented in any criminal prosecution. Their exit from power has usually come to mean the resignation of their appointees, although this is now being challenged. The assistant public prosecutor's office, responsible for attending to prosecutions in court, is also subjected to political influence, whether involving appointments or the carrying out of duties.

It was through this process that the state government of Gujarat was able to ensure that the public prosecutors in the Gujarat massacre trials of 2002 were political supporters. In its written statement to the UN Commission on Human Rights in 2004, the ALRC noted that

3. …the authorities in Gujarat have demonstrated how utterly the system can be brutalized to further violate the rights of victims. In Gujarat, the same police force responsible for the atrocities has been charged with investigating the cases going to trial, and the government responsible for what occurred has been appointing the prosecutors. Although the National Human Rights Commission explicitly recommended that the Government of India permit independent agencies to investigate the cases, hear the trials in other states and provide witness protection, these recommendations were unheeded. Only in September 2003 did the Supreme Court state that it has 'no faith left' in the Gujarat government's handling of the cases arising out of Gujarat. It appointed a former solicitor general to sit as special advisor to the court in the Gujarat trials, and in November 2003, the Court stalled the proceedings in ten cases, including some of those mentioned above, while considering whether they should in fact be heard outside the state [ALRC, 'India: Genocide in Gujarat',  E/CN.4/2004/NGO/40].

While in Sri Lanka such overt politicization does not exist at the level of public prosecutors in magistrate courts, the attorney general’s department--which deals with severe crimes at the high courts as well as the supreme court--is largely influenced by politicians as well as police officers. For this reason, issues such as custodial torture and extrajudicial killings are only superficially addressed by the office, if at all. Additionally, it is the attorney general's office in Sri Lanka that represents or assists the state in international forums, for instance at a UN Human Rights Committee meeting.

Such political influence is made more effective by the poor conditions of the prosecution mechanism in most countries, including low pay and benefits and a lack of career prospects. The fact that public prosecutors in most Asian countries work for a fixed wage regardless of the cases they deal with or their outcomes further adds to the lack of accountability in their work; the prosecutor’s office will rarely appeal against an acquittal in a criminal case, and it will just as rarely be challenged after an acquittal.

In response to this callousness, there is an increasing application at Indian courts for the appointment of special prosecutors by way of a writ of mandamus (judicial act allowing for private attorneys to prosecute a specific case).

In order to overcome all these obstacles to carrying out its mandate effectively, the prosecution mechanism must be institutionally independent. It must enjoy the same independence as enjoyed by the judiciary, instead of being constrained by political factors, if it is to work towards improving human rights within the region.

Questions For Discussion

1.  What is the role of the prosecutor in upholding the rule of law in your country?
2.  Discuss the prosecution mechanism in your country with regard to the following:
a.  What legal powers do they have;
b.  What role do they play in criminal investigation; and
c.  Are they institutionally independent?
3.  What remedies are available to citizens when the prosecution fails to carry out its duties?
4.  In light of the above, how could the role of the prosecution mechanism be strengthened?